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Billy v Jubilee [1981] PGNC 47; N360(M) (20 November 1981)

N360(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 213 OF 1981

BETWEEN:

CAMILUS BILLY
APPELLANT

AND:

JUBILEE
RESPONDENT

Rabaul: Kearney DCJ
20 November 1981

APPEAL - action for damages for defiling daughter - if such action exists, it does so only under customary law - no evidence of custom called - Court’s jurisdiction therefore not established.

COURTS - District Court - semble, no jurisdiction to hear claim for seduction at common law or customary law - s.29(4) (c) District Courts Act 1963.

CUSTOMARY LAW - action for seduction - basis of claim is that brideprice on marriage would be reduced - relevant custom recognizing right to claim must be proved as a matter of fact.

JURISDICTION - (1) where action is based on customary law, Court must be satisfied by evidence of the relevant custom, to establish its jurisdiction - (2) District Court cannot mediate.

REASONS FOR DECISION

KEARNEY DCJ: This is an appeal against an order made by the District Court at Kokopo on 22 July 1981. The Court ordered the appellant to pay to the respondent the sum of K500 within 3 months, "for defiling (the respondent’s) daughter".

The facts are stated in the magistrate’s report of 30 July. The appellant took the respondent’s daughter and lived with her for 2 weeks. The respondent eventually located them both, and brought the appellant straight away before the District Court. The respondent there asked the appellant if he wanted to marry the girl; the appellant said that he did not, adding that he had no money to pay for her, and that the respondent could take her back to the village. The respondent then demanded that the appellant be ordered to pay him K500 compensation "for the damage done by (the appellant) to my daughter". This was because the bride price he expected to obtain when the girl was married off, would be reduced "because of the damage done to her by (the appellant)". The respondent said that if the appellant would marry her he need pay only K300. The appellant said he would not pay the K500 "because I only used her for 2 weeks". The magistrate then made the order, the subject of this appeal.

The appellant’s first ground is that the Court had no jurisdiction to make the order. Mr. Lightfoot relied upon some of the argument he had advanced in Henry Aisi v. Malaita Hoala^[1]; see page 3 of that judgment. He conceded, I think correctly, that it could not be argued that an action to enforce rights recognized by customary law was not a personal action "at law" for the purposes of s.29(1) of the District Courts Act 1963. I respectfully agree with the view of Bredmeyer J. in Henry Aisi v. Malaita Hoala (supra) that the words "at law" mean "allowed by the law of the land", and encompass actions for damages arising out of breaches of rights recognized by customary law.

It is clear that the only possible basis for this action lies in customary law. I think it is properly characterized as an action for seduction. This seduction of an unmarried daughter is an actionable wrong at the instance of the father in many systems of customary law. Its basis is often quite different (as here) from the action for seduction in the received common law, where loss of services to the parent arising, for example, from the daughter’s pregnancy, is the root of the action, though such loss is now conclusively presumed; see s. 7 of the Law Reform (Miscellaneous Provisions) Act 1962.

However, no material at all was placed before the magistrate to show that a claim of this type was recognized by the system of customary law to which these parties were subject. The fact that the behaviour of the appellant was actionable by custom at the instance of the father was something which had to be established before the Court by evidence, just like any other matter of fact: see s.5(1) of the Native Customs (Recognition) Act 1963, which imposes this legal requirement. I respectfully agree with the comments on this aspect, by Bredmeyer J. in Henry Aisi v. Malaita Hoala (supra) at pp. 5-6. The magistrate was bound to assure himself of this, by evidence, in order to ensure that the claim lay within his jurisdiction. To fail to do so, is to err in law. As no such evidence was called, it remains a matter of speculation whether there was jurisdiction to entertain the claim. That is unsatisfactory; jurisdiction must always be clear; there has been a substantial miscarriage of justice, in that respect, and the appeal must succeed on that ground.

My attention was not drawn during argument to s.29(4) (c) of the District Courts Act 1963 which provides that a District Court has no jurisdiction to hear an action for seduction. I am inclined to think that this provision covers such actions both at common law and customary law, and accordingly that would be another ground for upholding this appeal; it is unnecessary to express a concluded opinion. A Local Court clearly has jurisdiction over the customary law action, under s.13(1) (c) of the Local Courts Act 1963; that is, of course, once it has been proved by evidence that such an action is recognized by customary law.

The appellant had other grounds. There was no real evidence before the magistrate to enable him properly to assess the amount of compensation. It appears doubtful if proceedings were properly commenced; it seems that no written Complaint was lodged and indeed the magistrate’s report appears to indicate that the proceedings were in the nature of a "mediation", rather than a hearing of an action. A District Court’s function is to hear and determine disputes, in accordance with its Act; it has no power to conduct a "mediation", as has, for example, a Local Court under s. 31 of the Local Courts Act 1963.

For the reasons stated, I consider that the order of the District Court under appeal has not been shown to have been one which the Court had jurisdiction to make. It must be quashed and set aside. It is open to the respondent to bring his action in the Local Court and seek to prove it in the proper way.

Order accordingly.

Solicitor for the Appellant: A. Amet Public Solicitor
Counsel: D. Lightfoot
No appearance for the Respondent

^[1] Unreported National Court Judgment N316(M) of 2 July 1981